ORDERS:
ORDER AND DECISION
This matter came before me on the appeal by John David Hayes of the Real Estate Commission's
refusal to reconsider or rescind a default judgment resulting in the revocation of his real estate
license. A hearing was conducted on October 9, 1995. For the reasons stated in this Order, the
judgment of the Real Estate Commission is AFFIRMED.
FACTS
On August 26, 1993, Appellant was served with "Notice of Charges" setting forth specifically the
alleged violations of the law and the facts asserted that constitute violations of conduct prescribed
for a real estate agent. The Notice of Charges also states the rights of the Appellant to answer the
charges, to request a hearing and an opportunity to be heard. Appellant was informed that he
must request a hearing in writing within thirty days and that the failure to request a hearing would
result in the default authorizing the imposition of disciplinary action. The Notice of Charges was
received by Appellant on August 27, 1993.
Appellant sought the services of an attorney to answer the charges. The attorney failed to answer
on behalf of Appellant within the time period required. On October 7, 1993, the Real Estate
Commission issued its Order of Revocation (Default Judgment) setting forth specific findings of
fact relating to the charges, the failure of Appellant to answer or request a hearing on the charges,
and the statutory provisions Appellants violated. The Order revoked Appellant's real estate
license and all licensure qualifications. The Order was received by Appellant on October 8, 1993.
Upon receipt of the Order, Appellant contacted his attorney who, after alleged conversations with
Respondent, indicated that the Order was an error. Appellant subsequently obtained other
counsel for the purpose of reopening the default and pursuing an action against the first attorney.
After a number of intervening factors, not significant to the decision in this case, a hearing was
conducted by the Commission on the motion of Appellant to reconsider and rescind the default.
The hearing was held on February 15, 1995. An Order was issued on February 24, 1995 denying
the motion to reconsider and rescind the default judgment. This appeal followed.
DISCUSSION
The motion to reconsider and rescind the default judgment is in the nature of a motion under
South Carolina Rules of Civil Procedure Rule 55(c) to set aside an entry of default. Under Rule
55(c), for good cause shown the court may set aside an entry of default and, if a judgment by
default has been entered, may likewise set it aside in accordance with Rule 60(b). S.C.R.C.P.
Rule 55(c). The criteria for obtaining relief from judgment under S.C.R.C.P. Rule 60(b) mandates
a showing of mistake, inadvertence, excusable neglect, surprise, newly discovered evidence,
fraud, misrepresentation, or other misconduct of an adverse party. S.C.R.C.P. Rule 60(b). As a
practical matter, these factors are relevant under both rules. New Hampshire Ins. Co. v. The Bey
Corp., ___ S.C. ___, 435 S.E.2d 377 (Ct. App. 1993).
The Commission considered the evidence presented by Appellant which consisted of his
testimony, the testimony of an employee of Appellant, the affidavit of Aladdin Mozingo (the first
attorney), and representations from the attorney representing Appellant at the motion hearing.
Mozingo's affidavit simply states that "[a]s a result of innocent and understandable
miscommunications and misunderstandings with and/or between, [Mozingo], Mr. David Hayes
and Mr. Dwight Hayes [the attorney prosecuting the charges], no response was filed to a
complaint issued by the South Carolina Real Estate Commission against Mr. David Hayes...".
The employee was not aware of the pending disciplinary action and only testified about facts
establishing the attorney-client relationship between Appellant and Mozingo.
The Commission concluded that the Appellant "was properly served with the Notice of Charges,
that he was given ample opportunity to appear and contest the allegations made against him..."
and denied the motion. A decision to grant the relief is in the sound discretion of the hearing
tribunal and the Commission's decision will not be disturbed on appeal unless there is a clear
showing of an abuse of discretion. Mitchell Supply Co., Inc. v. Gaffney, 297 S.C. 160, 375
S.E.2d 321 (Ct. App. 1988).
For the purpose of obtaining relief from judgment on the basis of inadvertence or mistake, the
appellate courts of this state have repeatedly held that the acts of the attorney are directly
attributed to and binding on the client. Cassady v. Meares, 266 S.C. 352, 223 S.E.2d 191 (1976);
Williams v. Vanvolkenburg, ___ S.C. ___, 440 S.E.2d 408 (Ct. App. 1994); Greenville Income
Partners v. Holman, 308 S.C. 105, 417 S.E.2d 107 (Ct. App. 1992); Wham v. Shearson Lehman
Brothers, Inc., 298 S.C. 462, 381 S.E.2d 499 (Ct. App. 1989); Mitchell Supply Co., Inc. v.
Gaffney, supra and cases cited therein; Roberts v. Peterson, 292 S.C. 149, 355 S.E.2d 280 (Ct.
App. 1987) The general rule undoubtedly is that the neglect of the attorney is the neglect of the
client, and no mistake, inadvertence or neglect attributable to an attorney can be successfully used
as a ground for relief, unless it would have been excusable if attributable to the client. Simon v.
Flowers, 231 S.C. 545, 99 S.E.2d 391 (1957).
In the present case, there is no evidence of why the attorney failed to answer the charges or
request a hearing on behalf of his client except miscommunication. There is no evidence about
the substance of the miscommunication. Where there is a complete absence of any explanation of
why the Appellant or his attorney failed to answer or request a hearing, a default judgment will
not be set aside on the basis of mistake or excusable neglect. Cassady v. Meares, supra; see also
Williams v. Vanvolkenburg, supra.
ORDER
For the foregoing reasons, the decision of the South Carolina Real Estate Commission denying
the motion to reconsider and rescind the default judgment issued against John David Hayes
revoking his real estate license is AFFIRMED.
AND SO IT IS ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
November _____, 1995
Columbia, South Carolina. |
